Victorian Numbered Acts Victorian Numbered ActsFor Divisions 2 and 2A of Part 11 of the Building Act 1993 substitute —
(1) The Authority may approve codes of conduct for building practitioners in accordance with this Division.
(2) A code of conduct may make different provision for different categories or classes of building practitioners.
(1) A code of conduct approved by the Authority under this Division may be—
(a) a code of conduct prepared by the Authority; or
(b) a code of conduct prepared and submitted to the Authority by an organisation representing building practitioners.
(2) In preparing a code of conduct under subsection (1)(a), the Authority—
(a) must consult with any prescribed organisation representing building practitioners; and
(b) may consult with any other organisation.
(3) The Authority may make changes to a code of conduct submitted to the Authority under subsection (1)(b).
(4) Before making changes to a code of conduct under subsection (3), the Authority—
(a) must consult with the organisation that submitted the code of conduct; and
(b) may consult with any other organisation.
A code of conduct approved by the Authority under this Division must be published in the Government Gazette.
A code of conduct comes into operation on the later of—
(a) the day on which the code of conduct is published in the Government Gazette; or
(b) the day specified in the code of conduct as the day on which the code of conduct comes into operation.
A building practitioner must comply with any code of conduct approved under this Division that is applicable to the building practitioner's category or class of registration.
Note
Section 179(1)(b) provides that disciplinary action may be taken by the Authority against a registered building practitioner who fails to comply with an approved code of conduct.
In this Division, "disciplinary action" in relation to a registered building practitioner means one or more of the following—
(a) reprimand the practitioner;
(b) direct the practitioner—
(i) to do a specified thing, including to rectify or complete specified building work; or
(ii) not to do a specified thing;
(c) require the practitioner to successfully complete a specified course of training within a specified period;
(d) impose a penalty of not more than 100 penalty units unless—
(i) a charge has been filed in the Magistrates' Court in relation to the matter; or
(ii) the matter has been dealt with by a court exercising its criminal jurisdiction; or
(iii) the matter has been dealt with by the issue of an infringement notice;
(e) vary a condition (other than a prescribed condition), or impose a condition, on the practitioner's registration;
(f) suspend registration for not more than 3 years either wholly, or as a partial suspension in relation to a specified matter;
(g) cancel registration;
(h) disqualify the practitioner from being registered for a specified period of up to 3 years.
(1) Subject to subsection (2), this Division (except Subdivision 3) applies to a building practitioner whose registration is suspended but who was registered at the time the conduct that forms the ground for disciplinary action occurred as if the practitioner were a registered building practitioner.
(2) The Authority must not give a show cause notice under Subdivision 5 in relation to a matter to a building practitioner whose registration is suspended after the end of the 3 year period immediately following the suspension if the suspension relates to that matter.
(1) Each of the following is a ground for which disciplinary action may be taken against a registered building practitioner—
(a) the practitioner has contravened—
(i) this Act or the regulations under this Act; or
(ii) the Domestic Building Contracts Act 1995 or the regulations under that Act; or
(iii) a prescribed Act or law or a prescribed provision of a prescribed Act or law;
(b) the practitioner has engaged in unprofessional conduct or has failed to comply with a code of conduct;
(c) the practitioner has failed to comply with an order or direction (other than an oral direction to fix building work under Division 2 of Part 4) given to the practitioner—
(i) by the relevant building surveyor under this Act; or
(ii) an authorised person under Division 2 of Part 4;
(d) the practitioner has failed to comply with a determination or direction of the Authority or VCAT under this Act or the Domestic Building Contracts Act 1995 ;
(e) the practitioner has failed to comply with a reasonable direction of an insurer in relation to—
(i) the completion or rectification of defective building work; or
(ii) any payment to be made to the insurer in relation to the rectification or completion of defective building work in accordance with the required insurance;
(f) the practitioner has engaged in conduct in relation to the practitioner's practice as a building practitioner that is—
(i) constituted by a pattern of incompetence; or
(ii) negligent in a particular matter;
(g) the Authority believes on reasonable grounds that the practitioner is no longer a fit and proper person to practise as a building practitioner;
(h) the practitioner has obtained the practitioner's registration under this Part or any required insurance on the basis of information or a document that was false or misleading;
(i) the practitioner has failed to comply with a condition of the practitioner's registration;
(j) the practitioner has failed to comply with an undertaking given to the Authority under this Act;
(k) the practitioner has made or purported to make an appointment of a building surveyor in contravention of section 78(1A) or has accepted such an appointment or purported appointment in contravention of section 78(1B);
(l) the practitioner has not completed the relevant prescribed continuing professional development requirements (if any);
(m) the practitioner has not paid a fee or other amount required to be paid under—
(i) this Act or the regulations; or
(ii) the Domestic Building Contracts Act 1995 or the regulations under that Act; or
(iii) a prescribed Act or law;
(n) the practitioner has not paid an adjudicated amount due to be paid under the Building and Construction Industry Security of Payment Act 2002 and—
(i) the period for making an adjudication review application under that Act in relation to that amount has expired; and
(ii) the practitioner has not made an adjudication review application in relation to that amount within that period;
(o) a ground for immediate suspension exists in relation to the practitioner.
(2) The Authority may make inquiries to determine whether a ground exists for taking disciplinary action under this Part.
If a body corporate or a partnership of which a registered building practitioner is a director or partner contravenes this Act or the regulations or the Domestic Building Contracts Act 1995 or the regulations under that Act in the carrying out of building work, that contravention is taken to have been a contravention by the registered building practitioner for the purposes of section 179.
A ground for the immediate suspension of the registration of a registered building practitioner exists if—
(a) the practitioner is insolvent under administration or is an officer of a body corporate that is insolvent under administration; or
(b) the practitioner has contravened —
(i) a prescribed provision of this Act or the regulations; or
(ii) a prescribed provision of the Domestic Building Contracts Act 1995 or the regulations under that Act; or
(iii) a prescribed Act or law or a prescribed provision of a prescribed Act or law; or
(c) the practitioner has been convicted of an indictable offence involving fraud, dishonesty, drug trafficking or violence; or
(d) the practitioner has ceased to be covered by the required insurance; or
(e) the practitioner does not comply or no longer complies with a condition prescribed under section 170(1)(d) or prescribed or imposed under section 170A for the registration.
(1) The Authority may, by written notice given to a registered building practitioner, immediately suspend the registration of the registered building practitioner if the Authority reasonably believes a ground for immediate suspension exists under section 180(1) (other than paragraph (d)) in relation to the practitioner.
(2) The Authority must, by written notice given to a registered building practitioner, immediately suspend the registration of the registered building practitioner if the Authority reasonably believes that the practitioner has ceased to be covered by the required insurance.
(3) The Authority may suspend a registration under subsection (1) either wholly or as a partial suspension in relation to a specified matter.
(4) The notice must state the following—
(a) the decision;
(b) the ground or grounds under section 180 for the decision;
(c) the period of the suspension;
(d) that the building practitioner may apply to VCAT under this Part for review of the decision.
(5) The Authority must provide written reasons for the immediate suspension within 5 business days after giving the notice.
(6) The Authority must give the building practitioner a show cause notice under section 182 without delay after giving the notice under this section.
(1) A suspension under section 180A—
(a) takes effect when the notice is given to the building practitioner; and
(b) continues for the period specified in the notice unless either of the following occurs—
(i) the suspension is revoked by the Authority;
(ii) the suspension is set aside on an application for review under this Part.
(2) The Authority must revoke a suspension under section 180A(1) if the Authority determines that no ground for immediate suspension under that provision exists.
(3) The Authority must revoke a suspension under section 180A(2) if the practitioner gives the Authority written proof that—
(a) the practitioner is covered by the required insurance; and
(b) the insurance cover is provided until the next anniversary of the practitioner's registration.
(1) This section applies if the Authority is satisfied that a registered building practitioner is incapable of practising as a building practitioner because of physical or mental infirmity.
(2) The Authority may decide to—
(a) suspend the person's registration for not more than 3 years; or
(b) cancel the person's registration.
(3) A decision under subsection (2)(a) may be made more than once.
(4) Subdivision 5 and Division 4 apply to a proposed decision under this section as if—
(a) the circumstances in subsection (1) were a ground for disciplinary action; and
(b) the decision were a disciplinary action.
(1) A person may apply to the Authority to revoke the suspension of the person's registration under section 181.
(2) An application must be made in the form and contain the information required by the Authority.
(3) The Authority must consider the application unless the Authority considers it to be frivolous, vexatious or lacking in substance.
(4) The Authority may at any time revoke a suspension under section 181 if it is satisfied that the registered building practitioner is capable of practising as a building practitioner.
(5) The Authority must, without delay, give written notice of the decision to the registered building practitioner.
(1) If the Authority reasonably believes a ground for taking disciplinary action against a registered building practitioner exists and proposes to take that action, the Authority must give the registered building practitioner a notice under this section (a show cause notice ).
(2) The show cause notice must state the following—
(a) that the Authority proposes to take disciplinary action;
(b) the disciplinary action proposed to be taken;
(c) the registration in relation to which the proposed action is to be taken;
(d) the ground for the proposed action;
(e) an outline of the facts and circumstances forming the basis for the ground for the proposed action;
(f) an invitation to the registered building practitioner to show within a stated period (the show cause period ) why the proposed action should not be taken.
(3) The show cause period must be a period ending at least 14 days after the show cause notice is given to the registered building practitioner.
(4) The Authority, at the request of the registered building practitioner, may extend the show cause period stated in the show cause notice and in that case the extended period becomes the show cause period.
(1) The registered building practitioner may—
(a) make written representations about the show cause notice to the Authority within the show cause period; or
(b) make oral representations about the show cause notice to the Authority at the time within the show cause period, and at the place, agreed by the Authority and the registered building practitioner.
(2) The Authority must keep a record of oral representations made to it under subsection (1)(b).
Within 28 days after the show cause period ends, the Authority must decide whether a ground exists to take disciplinary action against the registered building practitioner.
If the Authority no longer believes a ground exists to take disciplinary action against the registered building practitioner, the Authority—
(a) must take no further action about the show cause notice; and
(b) must revoke any suspension under section 180A(1) that relates to the matter that is the subject of the show cause notice; and
(c) must, as soon as practicable after making its decision, give notice to the registered building practitioner that no further action will be taken about the show cause notice.
If the Authority believes a ground exists to take disciplinary action against the registered building practitioner, the Authority may—
(a) accept an undertaking from the practitioner under section 234B; and
(b) do any of the following—
(i) defer taking the proposed disciplinary action for a specified period;
(ii) take disciplinary action that the Authority considers to be less serious than the proposed disciplinary action;
(iii) take no further action.
(1) If the Authority believes a ground exists to take disciplinary action against the registered building practitioner, the Authority may—
(a) take the disciplinary action proposed in the show cause notice; or
(b) on the basis of representations
made or new evidence received, take disciplinary action that the Authority
considers to be less serious than the disciplinary action referred to in
paragraph (a).
(2) The Authority must, as soon as practicable after making its decision, give a written notice about the decision to the registered building practitioner.
(3) The notice must state the following—
(a) the decision;
(b) the reasons for the decision;
(c) that the practitioner may apply under Division 4 for review of the decision within 28 days.
(4) The decision takes effect on the later of—
(a) the day the notice is given to the registered building practitioner; or
(b) the day stated in the notice.
(1) The Authority must give notice of a decision under this Division in relation to a registered building practitioner to any person who made a complaint to the Authority about the matter to which the decision relates.
(2) If the Authority is aware that a registered building practitioner is a member of a professional association or is employed by a particular person, the Authority must cause notice of any decision concerning the practitioner made under this Division to be given to that association or employer without delay after the decision takes effect.
A person who has had a registration as a building practitioner cancelled or suspended under this Division must, without delay after the decision to cancel or suspend the registration takes effect, give notice in the prescribed form (if any) of the cancellation or suspension to any person who has a contract with the person relating to, or arising out of, the carrying out of the practitioner's work as a registered building practitioner.
Penalty: 50 penalty units.
A person is not liable in any way for any loss, damage, or injury suffered by another person solely because the first person in good faith—
(a) lodged a complaint with the Authority in relation to a registered building practitioner; or
(b) produced or gave a document or any information or evidence to the Authority in relation to a matter that constitutes or may constitute a contravention of—
(i) this Act or the regulations; or
(ii) the Domestic Building Contracts Act 1995 or the regulations under that Act; or
(iii) a prescribed Act or law or a prescribed provision of a prescribed Act or law.
(1) While a person's registration as a building practitioner is suspended, the practitioner is taken not to be registered under this Part either wholly or, if it is a partial suspension, in relation to the matter specified in the suspension.
(2) A person whose registration as a building practitioner is suspended may apply for a renewal of that registration during the period of suspension but the renewed registration remains suspended either wholly or as a partial suspension (as the case requires) in accordance with the terms of the suspension until the registration is cancelled or the suspension ends or is revoked.
(1) The Authority may at any time revoke a suspension under Subdivision 5 if satisfied that it is appropriate to do so.
(2) The Authority must, without delay, give written notice of the revocation to the registered building practitioner.
Any amount that the Authority requires a registered building practitioner to pay by way of a penalty under this Division may be recovered in any court of competent jurisdiction as a debt due to the Authority.
In this Division—
"affected person" means a person directly affected by a reviewable decision;
"reviewable decision" means any of the following decisions under this Act—
(a) a decision to refuse to grant registration;
(b) a decision to impose conditions (other than prescribed conditions) on registration;
(c) a decision to refuse to renew registration;
(d) a decision to immediately suspend registration;
(e) a decision by the Authority to take disciplinary action;
(f) a decision to give a registered building surveyor or a member of a class of registered building surveyors a direction under section 205M;
(g) another decision prescribed by the regulations as being a decision for which a person may apply for internal review or review by VCAT under this Division;
review decision has the meaning set out in section 185C;
"reviewer" means a person deciding an internal review under this Division.
(1) This section applies if a reviewable decision is made by a delegate of the Authority other than a Commissioner or the chief executive officer of the Authority.
(2) A person who is directly affected by a reviewable decision may apply to the Authority for an internal review of the decision.
(3) Subject to subsection (4), the application must be made within 28 days after the day the affected person is given notice of the reviewable decision.
(4) The Authority may, at any time, extend the time for applying for an internal review.
(5) An application for an internal review must be in writing and state fully the grounds of the application.
(6) Subject to subsection (7), an application for an internal review stays the operation of the decision.
(7) An application for an internal review does not stay the operation of a decision to immediately suspend registration.
(1) The Authority must appoint an employee of the Authority to conduct an internal review.
(2) An internal review must not be conducted by—
(a) the person who made the reviewable decision; or
(b) a person who was involved in the matters that gave rise to the reviewable decision; or
(c) a person who holds a less senior position than a person referred to in paragraph (a) or (b).
(1) The reviewer must conduct the internal review on—
(a) the material before the Authority that led to the reviewable decision; and
(b) the reasons for the reviewable decision; and
(c) any other material that was not available at the time of the reviewable decision that the reviewer is satisfied is relevant.
(2) For the review, the reviewer must give the affected person a reasonable opportunity to make written or oral representations to the reviewer.
(1) The reviewer must make a decision (the review decision ) to—
(a) affirm the reviewable decision; or
(b) amend the reviewable decision; or
(c) substitute another decision for the reviewable decision.
(2) If the review decision affirms the reviewable decision, for the purpose of an application for review by VCAT, the reviewable decision is taken to be the review decision.
(3) If the review decision amends the reviewable decision, the reviewable decision as amended is taken to be the review decision.
(4) If the review decision substitutes another decision for the reviewable decision, the substituted decision is taken to be the review decision.
(1) The Authority must, as soon as practicable after the review decision is made, give the affected person notice (the review notice ) of the review decision.
(2) The review notice must state the following—
(a) the reasons for the decision;
(b) that the affected person may apply to VCAT for review of the decision under this Division.
(3) If the Authority does not give the review notice within the review period the reviewer is taken to have made a review decision affirming the reviewable decision.
(4) In this section—
"review period" means the longer of—
(a) the relevant period prescribed by the regulations (if any); or
(b) the period ending 28 days after the application is made.
(1) An affected person who has applied for an internal review of a reviewable decision under Subdivision 2 and is dissatisfied with the review decision may apply to VCAT for review of the review decision.
(2) An affected person who was not eligible to apply for an internal review of a reviewable decision may apply to VCAT for review of the reviewable decision.
(3) An affected person may apply to VCAT (without applying for internal review) for review of a reviewable decision to immediately suspend, suspend or cancel a registration.
(4) An application for review of a reviewable decision or review decision must be made within—
(a) in the case of an application under subsection (1), 14 days after the end of the review period for internal review; or
(b) in any other case, 28 days after the reviewable decision or review decision is made.
(1) After hearing the matter, VCAT may—
(a) affirm the review decision or reviewable decision; or
(b) amend the review decision or reviewable decision; or
(c) substitute another decision for the review decision or reviewable decision.
(2) Subject to subsection (3), an application for review stays the operation of the decision.
(3) An application for review does not stay the operation of a decision to immediately suspend registration.".